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DOCI(ET CALL

OCTOBER/NOVEMBER 1996

A Publication of Harris County Criminal Lawyers Association

A Publication of Harris County Criminal Lawyers Association Honoree Richard "Racehorse" Haynes and Featured

Honoree Richard "Racehorse" Haynes and Featured Speaker, Ge rry Spence of Jackson , Wyom ing

Photog raphy by Russell Webb

~a.rri.s ~O'li n

I

a.~ers

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• Our bilingual staff provides prompt, courteous service with over half a century of bonding experience

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• Conveniently located across from city jail

• Serving all courts in Harris County, with statewide and national affiliates

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Acrossfrom City Jail

Lie. #74346

DOCKET CAll

HCClA rs & Directors 1996-1997 President-Elect Vice·President Secretory Lloyd W . Oliver Gorlond D. Mcinnis

HCClA

rs & Directors

1996-1997

President-Elect Vice·President Secretory

Lloyd W . Oliver

Gorlond D. Mcinnis Robert A. Moen Stonley Schneider Wendell A. adom,

Jr.

Treasurer

George

M. Secrest, Jr.

Immediate Past President

George

J. Pomham

Board Chairman

Robert A. Moen

Directors:

Joseph W. Varela

Ted R. Doebbler Tanya l. Elliott

Donny Easterling

Richard Trevathan

Joseph Solhob

Clyde Williams

W. B. "Bennie" House, Jr.

Winston E. Cochran, Jr.

 

Ron Hayes

Ken Mclean

James Stafford

Robert Morrow

Bob Tarrant

Mike Charlton

Past-Presidentts

1971·1996

C.

Anthony Friloux

( 1972-1973)

Stuart Kinard

(1973-197.4)

George Luquette

(197.4-1975)

Morvin O. Teague

(1975-1976)

Dick DeGuerin

(1976-1977)

W. B.

"Bennie" House, Jr . (1977-1978)

David

R. Bires

(1978- 1979)

Woody Densen

(1979-1980)

Will Gray

(1980-1981)

Edward A. Mollett

(1981-1982)

Carolyn Garcia

(1982-1983)

Jock B. Zimmermann

(1983-1984)

Clyde Williams

(198.4-1985)

Robert Pelton

(1985-1986)

Candelorio Elizondo

(1986-1987)

Allen C. Isbell

(1987 -1988)

David Mitcham

(1988-1989)

Jim E. Lavine

( 1989-1990)

Rick Bross

(1990- 1991)

Mary E. Conn

( 1991·1992)

Kent

A. Schaffer

( 1992-1993)

Don Cogdell

(1993-199.4)

Jim Skehan

(199.4-1995)

George J. Pomhom

(1995-1996)

President's Club David Cunni"9hom Ken! A. Schaffer

Docket Call

Editor Associate Editor Design & Production

Allen C . tsbell Robert Pelton Donna K . Kleszcz

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Distribution 500 copies per issue. Articles and other edi­ torial contributions should be sent to the Editor, 202

or the ASSOCiation

Travis , Suite 208 , Houston 77002

office at 405 Main St., 303, Houston 77002 Tetephone (713) 227-2404.

DOCKET

OCTOBERJNOYEMBER

Contents

1996

Court Ru1emaking and Statutory Conflict in Texas

by Don Rogers 2

HCCLA Grievance Committee Resolution by David Mitcham

ALR Appea\s

17

by Elizabeth Rutkowski 18

LET'S HEAR FROM YOU!

CONTINUING LEGAL EDUCATION

Wednesday Appellate Updates

October 10, 1996 November 14, 1996 December 12, 1996

Criminal Courthouse Bldg ., 301 San Jacinto, 230th court 01.00 MCLE, 12:00 Noon HCCLA Board Meeting, Thursday noon, Scanlan Bldg., 405 Main 2nd floor conference

October 24, 1996

LUNCHEON PROGRAM, Thursday

noon,

Treebeard's at The Church, 1117 Texas.

October 17-18, 1996

Experiencing Internet Travel:

Why Lawyers Need To Learn How to Navigate the Internet. South Texas College of Law & the State Bar of Texas Computer Section, 10.50 MCLE

(713) 646-1757 or (800) 646-1253.

November 1, 1996

Keys To The Locks At Trial:

Opening Up the Mind, Heart and Soul of Jurors.

South Texas College of Law- State of Texas Professional Development Course.

November 6-9, 1996

NACDL Fall Meeting/Seminar The Ultimate in Juror Persuasion

Hyatt Regency, San Antonio Co-Sponsored by TCDLA 2021872-8688, ext. 236.

"Existing rules and principles can give us our present location, or bearings, our latitude and

"Existing rules and principles can give us our present location, or bearings, our latitude and longitude. The inn that shelters for the night is not the journeys end. The law, like the traveler must be ready for the morrow. It must have a principle of growth." Cardozo, BeJUamin N., The Growth ofthe Law (New Haven: Yale University Press, 1924), pp. 19·20.

DOCKET CALL

OCTOBERINOVEMBER 1996

Court Rulemaking and Statutory Conflict in Texas

by

Don Rogers

The provisions of Article 4495b, § 5.08 of the Texas Revised Civil Statutes create a physician-patient privilege, make medical records confidential, and estab­ lish procedures for obtaining access to medical records which appear on the face of the statutory provisions to be applica­ ble to court proceedings. I The provi­ sions of Sections 611.00 I through 611.005 of the Texas Health and Safety Code create a mental health professional­ patient privilege, establish that communi­ cations between a professional and pa­ tient and associated records of treatment are confidential, and provide among other things legal remedies for improper disclo­ sure of confidential infonnation. 2 These statutes are hereinafter referred to as the

medical and mental health enactments.

The Supreme Court of Texas and the Court of Criminal Appeals of Texas hold that the medical and mental health enact­ ments, among other lawfully enacted statutes not repealed or limited in scope by the Texas Legislature, do not apply to court proceedings insofar as the statutes are "deemed repealed" in civil and crimi­ nal cases and criminal law matters through court orders and accompanying documents issued in coIUlection with court rulemaking. 3 The practices and holdings of the Supreme Court and the Court of Criminal Appeals deeming law­ fully enacted statutes repealed in order to deny full lawful effect to the statutes in court proceedings and related matters cause an anomalous situation: A person affected by a lawfully enacted statute CaIUlot determine from the face of the statute whether or to what extent it ap­

plies to court proceedings or related mat­ ters. The constitutional and statutory rulemaking authority of the Supreme Court and the Court of Criminal Appeals is analyzed in this article to determine whether the practices and holdings of both Courts denying full effect to lawfully enacted statutes are pursuant to the lawful exercise of any constitutional or statutory authority.4 Analysis of each Court's respective rulemaking authority demon­ strates: (I) that neither Court is autho­ rized by the Texas Constitution to pro­ mulgate any rule contrary to any provi­ sion of a lawfully enacted statute; (2) that neither Court is empowered with any lawful authority to repeal, amend, or limit the application of any lawfully enacted statute; and (3) that the practices and holdings of both Cow1s, whereby law­ fully enacted statutes are deemed repealed and denied lawful effect in court proceed­ ings and related matters, are unconstitu­ tional as they exceed the scope of author­ ity granted by Article V, § 31 of the Texas Constitution and violate the sepa­ ration of powers doctrine of Article II, § 1 of the Texas Constitution by infringing on the powers of the legislative branch of government.

A basic understanding of the respec­ tive functions and powers of the legisla­ tive and judicial branches of government established by the Texas Constitution is necessary to analyze the scope of rule­ making authority that can be lawfully delegated by the Legislature to the Su­ preme Court and Court of Criminal Ap­ peals. Article III, § I of the Texas Con­ stitution establishes the legislative power

the Texas Con­ stitution establishes the legislative power of the State of Texas. The legislative functions

of the State of Texas. The legislative functions recognized to be included with Article ill, § 1 include the power to make, alter, and repeallaw. s The Texas Consti­ tution grants the Legislature ultimate

authority over

The Legislature has the authority to spec­

ify the means and procedure through which substantive provisions in the con­

stitution are made effective. 7 The

Legis­

lature is constitutionally entitled to expect

the cow1s to follow the specific text of

any lawfully enacted

judicial administration. 6

statute. s

Article V, § 1 of the Texas Constitu­

tion establishes the judicial power of the

State of Texas.

The judicial functions

included within the grant of power under Article V, § 1 are recognized as : "(1) the

power to hear facts, (2) the power to decide the issues of fact made by the pleadings, (3) the power to decide ques­ tions of law involved, (4) the power to enter a judgment on the facts found in accordance with the law as determined by the cowt, and (5) the power to execute the judgment or sentence. "9 Cow1s have a

duty to determine the validity and consti­ tutionality of any law enacted by the

the

Legislature. \0 Cow1s do not have

authority to judicially amend any statute or add words not implicitly contained in a statute. I I The Supreme Court and the Court of Criminal Appeals are authorized to promulgate rules for the governance of the courts within their respective jurisdic­ tion. The Supreme Court currently has rulemaking authority derived from Article

V, § 31 of the Texas Constitution and Sections 22.003 and 22.004 of the Gov­ ernment Code. The Court of Criminal

Appeals currently has rulemaking author­ ity derived from Article V, § 31 of the Texas Constitution and Sections 22.108 and 22.109 of the Government Code. The origin and scope of the rulemaking authority of the Supreme Court and Court of Criminal Appeals will be hereinafter discussed.

The Supreme Court power to promul­ gate rules of procedure and evidence for court proceedings in civil actions arises from the Constitution of 1876. 12 Article V, § 25 of the Texas Constitution, adopted in 1891, is the initial constitu­ tional source of the Supreme Court power

to promulgate the rules of civil procedure and rules of evidence. \3 In 1939, the Legislature, pursuant to Article V, § 25,

passed the Rules of Practice Act l4

to

enable the Supreme Court to promulgate what ultimately became the Texas Rules of Civil Procedure. The Legislature at the time ofenactment ofthe Rules of Practice

Act intended to delegate full rulemaking power in civil cases to the Supreme

Court. IS The provisions of Section 2 of the Act give the Court full rulemaking power as to matters of practice and proce­ dure in civil actions, and expressly pro­ vide that the rules promulgated by the Supreme Court cannot abridge, modify, or enlarge the substantive rights of a

gated what are now the Texas Rules of

Civil Procedure in 1940 and the Texas

Rules of Civil Evidence in

authority conferred by the provisions of Article V, § 25 of the Texas Constitution and the Rules of Practice Act. I 7

In 1985, the Legislature determined a need to delegate limited rulemaking au­ thority to the Court of Criminal Appeals for the promulgation of rules of evidence and rules of post-trial and appellate pro­ cedure in criminal cases, and passed a

16

The Supreme Court promul­

1982 through

joint resolution l8 leading to a constitu­ tional amendment whereby Article V, § 25 was repealed and replaced by Article

of the Texas Constitution. Arti­

cle V, § 3 Jl9 enables the Legislature to

delegate rulemaking authority to the

V, § 31

Supreme Court and Court of Criminal

Appeals. Article V, § 25 and Article V, §

31 of the Texas Constitution are excep­

tions to the general prohibition against delegation of legislative functions to the judiciary WIder the separation of powers provisions of Article II, § 1 of the Texas Constitution, and confer a limited grant of legislative power upon the COurts.20

On May 26, 1985, the Legislature, anticipating adoption of Article V, § 31, enacted House Bill No. 13,21 which will be later discussed, to enable the Court of Criminal Appeals to exercise limited rulemaking through promulgation of rules of evidence and rules of post-trial and

appellate procedure in criminal cases. House Bill No. 13 was initially codified as Article 1811 f of the Texas Rev ised Civil Statutes. In 1987, Sections 1, 2, and 3 of House Bill No. 13 became Sec­ tion 22.108 of the Govenunent Code/ 2 relating to promulgation and amendment of rules of appellate procedure in criminal cases. In 1987, Sections 5, 6, and 7 of House Bill No. 13 became Section 22.109 of the Government Code,23 relating to promulgation and amendment of rules of evidence in criminal cases. Section 9 of House Bill No. 13 is presently codified as

Article 1811 f, §

Statutes. Other sections of House Bill

No. 13 were repealed in 1987. 24 In 1985, the Legislature enacted Title 2 of the Texas Government Code 25 to consolidate statutes relating to the judiciary. The Rules of Practice Act, as amended, was incorporated into the Govenunent Code as Section 22.004. 26 The Legislature at that time added Section 22 .003 of the Government Code,27 which also relates to rulemaking by the Supreme Court. The sections mentioned regarding the rule­ making authority ofthe Court of Criminal Appeals were added to the Govenunent Code in 1987. The Court of Criminal Appeals promulgated what are presently the Texas Rules of Criminal Evidence and the crirninallaw aspects of the Texas Rules of Appellate Procedure through authority derived from Article V, § 31 of the Texas Constitution and House Bill

9 of the Revised Civil

No. 13. The Supreme Court promulgated the civil law aspects of the present Texas Rules of Appellate Procedure through authority derived from Article V, § 31 of the Texas Constitution and the Rules of Practice Act as incorporated into Texas Government Code Section 22.004.

The authority of the Supreme Court or Court of Criminal Appeals, if any, to repeal, amend, or limit the appli­ cation of a lawfully enacted statute through promulgation of an inconsistent rule or otherwise in connection with law­ fully delegated rulemaking authority is at best questionable. The Supreme Court and the Court of Criminal Appeals en­ gage in the practice of deeming lawfully enacted statutes repealed as to court pro­ ceedings and other matters, as discussed at the outset in connection with the medi­ cal and mental health enacbnents. Sec­ tion 3 of the Rules of Practice Act em­ powers the Supreme Court to file with the Secretary ofState a list of statutes, known as the List of Repealed Statutes, which in its opinion are repealed by Section 1 of the Act. Section 1 of the Rules of Prac­ tice Act is a general repealer of statutes relating to civil procedure. The Supreme Court holds that the statutes repealed by Section 1 of the Rules of Practice Act includes those enacted by the Legislature on or before the effective date of the act. 28 The Supreme Court, nevertheless, contin­ ues to add to the List of Repealed Stat­ utes those which in its opinion are deemed repealed by subsequent amend­ ments to the rules of procedure and rules of evidence, including statutes lawfully enacted after September 1, 1941, the effective date of the Rules of Practice Act. 29 The Supreme Court's authority for this practice has been questioned, but never directly challenged. 30 The Su­ preme Court, at the time of adoption of the rules of civil procedure, promulgated Rule 819/ 1 which provides that a rule of procedure prevails in the event of conflict with a statute. Appellate courts utilize Rule 819 to nullify statutory provisions

conflicting with rules of civil procedure. Section 22.004(c)33 of the Government

32

Code now provides in part that "a rule adopted by the supreme court repeals all conflicting laws and parts of laws govern­ ing practice and procedure in civil ac­ tions." The Court of Criminal Appeals designates all of the statutes listed in Section 9(b) of House Bill No. 13, includ­ ing the medical and mental health enact­ ments, for repeal as they relate to criminal cases and criminal law matters in its order adopting the Texas Rules of Criminal Evidence. 34 The Court of Criminal Ap­ peals does not add to its List of Repealed Statutes. Nevertheless, any subsequent enactment of a listed statute may later be deemed repealed under the present orders and holdings of the respective COurts. 35

An anomalous situation results from the practices, orders, and holdings that lawfully enacted statutes are deemed repealed as to court proceedings and related matters. A person affected by the operation of a lawfully enacted Texas statute cannot read the statute and deter­ mine its applicability in situations con­ nected with court proceedings or related matters. The statute must instead be fully briefed, including review of court orders and accompanying documents, to deter­ mine if the statute, or any predecessor, has been listed as repealed pursuant to a standardless determination by either

court. 36 The

applicability of the statute

may even then remain unclear. The situa­ tion presented does nothing but create confusion among all affected, including the bench, the bar, and law enforcement officials, as to the meaning and applica­ tion of lawfully enacted statutes. The ultimate consequences of this situation include waste of judicial resources, in­

creased probability of erroneous judicial decisions, and failure of the courts to carry out the will of the citizens of Texas as expressed through lawful enactments by their representatives in the Legisla­

ture. 17 The

whether the orders and holdings of the Supreme Court and Court of Criminal Appeals deeming lawfully enacted stat­ utes repealed, and accordingly inapplica­ ble to court proceedings and other mat­

issue hereafter addressed is

ters, are made pursuant to any lawful exercise of power or authority by either court.

The Supreme Court does not have authority under the Texas Constitution to promulgate any rule conflicting with the provisions of any lawfully enacted stat­ ute. 1be Supreme Court in Few v. Char­

ter

Oak

Fire

Insurance

Company1B

holds that the language "not inconsistent with the laws of the State" contained in Article V, § 25, the predecessor of Article V, § 31, causes the provision to be a limited grant of constitutional authority to promulgate rules not inconsistent with legislative enactments, meaning that a court-promulgated rule yields to the ex­ tent of conflict with a lawfully enacted statute by virtue of the Texas Constitu­ tion. Article V, § 31 replaces Article V, § 25 with the same language authorizing Supreme Cowt rulemaking "not inconsis­ tmt with the laws of the state." Readop­ tion of the language of a replaced consti­ tutional provision is presumed to be with the purpose not to change the law. 39 The construction of Article V, § 2S by the Supreme Court as a limited grant of power to promulgate rules not inconsis­ tent with the law as embodied in legisla­ tive enactments prior to adoption of the same language in Article V, § 3 1 be­ comes a part of the constitution upon adoption of Article V, § 31 to the extent that it cannot be changed even by a stat­ ute expressly seeking to change the mean­ ing of the provision as construed.4O The Supreme Court accordingly is prohibited by the provisions of Article V, § 31 from promulgation of rules of procedure or evidence inconsistent with lawfully en­ acted statutes. Any rule promulgated by the Supreme Court conflicting with a valid statute exceeds the authority granted by Article V, § 31 and to the extent of conflict is null and void ab initio.

The Court of Criminal Appeals has no constitutional authority to promulgate rules inconsistent with the provisions of any lawfully enacted statute. Article V, § 31(c) of the Texas Constitution autho­

rizes delegation of rulemaking authority to the Court of Criminal Appeals by the

Legislature. Article V, § 3 1(c) allows

Cowt of Criminal Appeals to promulgate rules which may be prescribed by law or the constitution. The constitution is construed as a whole 41 to ascertain the will of the people of Texas.42 The courts

cannot write in an exception to the consti­ tution as any change must be written by the people through amendment. 41 The constitution is strictly construed where the language is plain and unambiguous .44 Article V, § 31 prohibits promulgation of rules inconsistent with the laws of the State of Texas by the Supreme Court. The Court of Criminal Appeals cannot logically have more power under the Texas Constitution than the Supreme Court. Article V, § S empowers the Court of Criminal Appeals with fmal appellate jurisdiction in criminal cases subject to exceptions or regulations pro­ vided in the constitution or prescribed by law. The appellate jurisdiction of the Court of Criminal Appeals is regulated by

the Legislature. 45 No provision

Texas Constitution and no statute autho­ rizes the Court of Criminal Appeals to promulgate rules inconsistent with the law of the state. The will of the people expressed through Article V, § 31 of the Texas Constitution is that no appellate court has constitutional authority to pro­ mulgate a rule inconsistent with the law as embodied in a statute of the State of Texas. Any rule promulgated by the Court of Criminal Appeals conflicting with the provisions of any lawfully en­ acted statute exceeds the authority granted by Article V, § 31 of the Texas Constitution and is null and void ab initio to the extent of the conflict.

The Legislature has no power to delegate to the Supreme Court or the Court of Criminal Appeals authority which cannot be exercised lawfully pursu­ ant to the constitution. There is an im­ plied prohibition against adding to a condition specified in a constitutional provision where a power is given because the constitutional provision is exclusive

the

of the

as to the circwustances under which the power may be exercised. 46 The Legisla­ ture does not have power to enact any law contrary to the provisions of the constitu­ tion. 47 Neither the Legislature nor the courts can set aside a clear constitutional provision. 48 A statute conflicting with any constitutional provision is void and tmenforceable. 49 The Legislature, there­ fore, cannot delegate the power to pro­ mulgate a rule inconsistent with the law as embodied in a statute to either the Supreme Court or the Court of Criminal Appeals. The Legislature recognizes this restriction upon its power to delegate rulemaking authority to the Supreme Court through the language of Section 22.003 of the Government Code to the effect that the Supreme Court may pro­ mulgate and enforce all necessary rules "not inconsistent with the law". The Legislature, nevertheless, provides in Section 22 .004(c) of the Government Code that "a rule adopted by the Supreme Court repeals all conflicting laws and parts of laws governing practice and procedure in civil actions." Section 22.004(c) is based upon the premise that full rulemaking power requires a provi­ sion empowering the Supreme Court to repeal statutes as to matters of procedure conflicting with its rules. The premise begs the question as the Supreme Court may not lawfully promulgate a rule con­ flicting with a lawfully enacted statute because of the limited grant of authority by Article V, § 31 of the Texas Constitu­ tion. The power to repeal a statute is a power inconsistent with the laws because exercise of the power annuls a legislative enactment. The issue thus arises as to whether the Legislature may lawfully delegate the power to repeal or amend a statute to the Supreme Court and the Court of Criminal Appeals through dele­ gation of rulemaking power pursuant to either Article V, § 25 or Article V, § 31 of the Texas Constitution.

A repeal of a statute is essentially defined by an appellate court in Texas to be the abrogation or annulling of a previ­ ously existing law by subsequent statute

declaring the former law revoked or con­ taining provisions so contrary to the prior law that the prior law cannot stand. so A repeal completely abrogates the former law. An amendment alters the law leav­ ing some part of the original still stand­ ing. An amendment is a partial repeal of a law to the extent that the meaning of the law is changed or something is added to or deleted from the law increasing or

limiting its application. 51 Alteration

the scope or application of a statute is technically an amendment. The Supreme Court and Court of Criminal Appeals by deeming the medical and mental health enactments and other listed statutes re­ pealed as to court proceedings or related matters are actually attempting to amend the statutes so as to limit their application

to matters outside of court proceedings.

A deemed repeal may be viewed as a

legal fiction employed by a court to pre­

clude application of a lawfully enacted statute court proceedings or related mat­ ters . The word repeal as used herein refers to the power to either completely annul a statute or amend a statute by limiting its application.

The power to repeal a statute is an exclusive legislative power under Article III, § 1 of the Texas Constitution. The

powers to repeal or to amend a statute are powers of general legislation which may not ordinarily be delegated by the Legis­ lature in the absence of express constitu­

to repeal

laws may not be delegated under Article III, § I or Article II, § I without express

constitutional authority as that is an ex­ clusive legislative function.53 Repeals are either express or implied. An express repeal specifically annuls a designated statute. An implied repeal arises from passage of a subsequent statute with terms so contradictory to a prior statute that the statutes cannot stand together. The courts do not favor implied repeals and ordinarily attempt to harmonize con­ flicting statutes. An implied repeal is fmmd by the courts only where provisions

of statutes are irreconcilable. 54 Repeals

may also be general or specific. A gen­

tional authority. 52 The power

of

eral repeal or repealer is a clause or provi­ sion in a statute saying that all laws or parts of laws in conflict with the statute are repealed. 55 A specific repeal or re­ pealer is a provision in a statute designat­ ing a particular statute or statutes as repealed. A general repeal or repealer is effective to repeal prior enactments to the extent the prior enactments are incon­ sistent with or repugnant to the terms of the statute containing the provision. 56 A general repealing clause or general re­ pealer does not ordinarily repeal a special statute even though the special statute conflicts because the special statute is treated as an exception to the general statute regardless of the date of enact­

ment. 57 A general

general repealer is effectively nothing more than a repeal by implication.5&

The Legislature cannot delegate the power to repeal statutes in the absence of express constitutional authorization with­ out violating the separation of powers doctrine set forth in Article II, § I of the Texas Constitution.59 The separation of powers doctrine of Article II, § 1 is vio­ lated where one branch of government is delegated or assumes a power attached to another branch without express constitu­ tional authorization or interferes with another branch so as to prevent effective exercise of its constitutional powers. 60 Courts have no constitutional power to repeal or amend a statute. 61 Courts gen­ erally have nothing to do with making or repealing statutes and violate their own powers by undertaking to repeal a statute. 62 Courts may determine the validity of statutes and may construe ambiguous statutes, but may not legislate under the guise of statutory construction by attempting to rewrite or change a statute. 63 The Legislature generally cannot delegate legislative functions to the COurts.64 A function of govenunent that the Legislature cannot directly dele­ gate to the courts cannot be indirectly delegated to the courts. 6S

Article V, § 31 of the Texas Consti­ tution does not expressly provide that the

repealing clause or

legislature may delegate the power to repeal statutes to the judicial branch of government. No other provision in the ~exas Constitution allows such delega­ bon. Courts may not write in exceptions to any provision in the constitution through construction as any change must be made by the people through constitu­ tional amendment. 66 The provisions of

V, § 25 and Article V, § 3 I al­

lowing promulgation of rules not in~n­ sistent with the laws as embodied in

legisl.~~e enactments, contain an implied

of the

power to repeal statutes to the courts. The power to repeal statutes cannot arise as an implied power from the constitu­ tional grant of rulemaking authority in any event as the provisions of Article II § I of the Texas Constitution allow trans:

fer ofpower among government branches only by express constitutional authoriza­ tion. The limited grant of power to pro­ mulgate rules in a manner not inconsis­

tent with the laws negates implied power to repeal statutes as such a power is con­ trary to the limited grant and cannot be lawfully exercised. 67 The Legislature is not empowered by either former Article

§ 31 to delegate the

power to repeal any statute to either the Supreme Court or the Court of Criminal Appeals. The Legislature cannot indi­ rectly delegate such power to the courts where it cannot directly delegate such power. Repeal of a statute is more prop­ erly a fimction of the Legislature than the courts because repeal ofa statute involves

p~blicpolicy considerations more appro­ pnately made by the Legislature than the judicial branch of government. 68 The Legislature in the absence of an express grant of authority in the constitution violates the separation of powers doctrine of Article II, § I of the Texas Constitu­ tion by delegating the function of repeal of any lawfully enacted statute to the judiciary. The issue thus becomes whether the Legislature in fact delegates the power to repeal statutes to the Su­ preme Court or the Court of Criminal Appeals through respective enabling

Article

prohibitIon

against

delegation

V, § 25 or Article V,

legislation.

The Legislature does not delegate the power to repeal statutes to the Supreme Court through the Rules of Practice Act as originally enacted. The only sections of the Rules of Practice Act relevant to the issue of whether the Act confers power to repeal or limit application of lawfully enacted statutes upon the Su­ preme Court are Section I and Section 3,(1} which should be considered together as to practical effect. The magnanimous language of Section I creates a hybrid type of general repealer having the basic effect of an implied repeal as to statutes enacted on or before the effective date of the act. 70 Section I is referred to herein as a hybrid type of general repealer as it purports to repeal only procedural stat­ utes or parts of statutes while leaving substantive statutes or parts of statutes unaffected by the repeal. The result under this approach is that statutes having both substantive and procedural aspects are amended to delete the procedural aspects. The Legislature does not undertake the task of determining which statutes are affected by Section I and instead leaves the ~ask to the Supreme Court through SectIOn 3. Section 3 authorizes the Su­ preme Court at the time of filing the rules of procedure authorized by Section 2 to additionally file with the Secretary of State a list of statutes which in its judg­ ment are affected by the repeal in Section I of the Act. The list of statutes con­ strued by the Supreme Court as affected by the repeal in Section I of the Act "shall constitute, and have the same weight and effect, as any other decision of the Supreme Court." Section 3 empowers the Supreme Court to file a list of statutes amounting to an advisory opinion in the absen~ of an actual case or controversy, and IS, therefore, unconstitutional in violation of the separation of powers doctrine of Article II, § 1 of the Texas Constitution as an infringement upon the powers ofthe executive branch of govern- S

ectIon . 3 does not under any Circumstances authorize the Supreme Court's practice of adding lawful statutes

t

~en .

71

enacted after the effective date of the Act to the List of Repealed Statutes. The language of Section I gives the Supreme Court no more power than it already has to determine whether an implied repeal results as to any statute enacted on or before the effective date of the Act. The I~guage of Section I is of practical sig­ nifi~ only as evidence of the Legisla­ ture s mtent, at the time of the Act, to confer full rulemaking power upon the Supreme Court. The language of Section

I relinquishing full rulemaking power to the Supreme Court is otherwise of no

prac~ical significance as one legislative sesSIOn, regardless of intent, cannot bind

a subsequent legislature so as to prevent

amendment or repeal of any statute 72 or prevent a subsequent legislature from exercising its constitutional powers with respect to the judiciary. The general repealer in Section I only affects statutes enacted on or before the effective date of the Act. 73 Any statute which specially

addresses a subject matter area encom­ passed by the rules of procedure or evi­ dence may be construed as a special stat­ ute controlling over the rules in the event of conflict. H

Section 3 of the Rules of Practice Act as amended in 1985 and incorporated into Section 22.004(c) of the Texas Govern­ ment Code authorizes the Supreme Court ~ rep.ea1 statutes by promulgation of mconslStent rules, and is unconstitutional ~ an unauthorized delegation of a legisla­ tIve function violating the separation of powers doctrine of Article II, § 1 of the Texas Constitution. Section 22.004(c) cannot, therefore, lawfully empower the Supreme Court to repeal any statute or deem any lawfully enacted statute re­ pealed as to court proceedings or related matters. The power conferred upon the Supreme Court through Article V, § 25 and Article V, § 31 of the Texas Consti­ tution authorizes the Supreme Court only to promulgate rules of procedure not inconsistent with the laws of the state and does not relieve the Supreme Court of its duty to give full effect to lawfully enacted statutes. 75 The limited rule­

making authority conferred upon the Supreme Court can be withdrawn or modified at any time at the discretion of the Legislature. The practices and hold­ ings of the Supreme Court whereby stat­ utes lawfully enacted after September 1, 1941 are placed on the List of Repealed Statutes, deemed repealed, and thereafter denied full lawful effect in court proceed­ ings or related matters: (1) exceed the authority granted by Article V, § 25 and Article V, § 31 of the Texas Constitution; (2) exceed the authority granted by the Rules of Practice Act as originally en­ ac~ and (3) interfere with the powers of the legislative and executive branches of government violating the separation of powers doctrine of Article II, § 1 of the Texas Constitution.

The Legislature does not lawfully delegate the power to repeal statutes to the Court of Criminal Appeals through House Bill No. 13, as is demonstrated by analysis of Section 9 of the Act in relation to Article V, § 31 of the Texas Constitu­ tion. Article V, § 31 (c) authorizes the Legislature to delegate to the Court of Criminal Appeals "the power to promul­ gate such other rules as may be pre­ scribed by law or this Constitution, sub­ ject to such limitations and procedures as may be provided by law." Nowhere in Article V, § 31 or any other provision is the Legislature authorized to empower the Court of Criminal Appeals to repeal statutes. In 1985, the Legislature enacted House Bill No. 13 76 to enable the Court of Criminal Appeals to promulgate what has become the Texas Rules of Appellate Procedure and the Texas Rules of Crimi­ nal Evidence. House Bill No. 13 empow­ ers the Court of Criminal Appeals to promulgate rules of evidence and rules of post-trial and appellate procedure, but not rules ofcriminal procedure. The Legisla­ ture can place any limitations or excep­ tions on the jurisdiction of the Court of Criminal Appeals." Section 9 78 is the portion of House Bill No. 13 relevant to the issue of authority of the Court of Criminal Appeals, if any, to repeal or limit application of the medical and men­

tal health enactments, and other lawfully enacted statutes listed therein. The provi­ sions of Section 9(a) allow the Court of Criminal Appeals to select which from among the statutes listed in Section 9(b) it desires to "designate for repeal" in connection with promulgation of rules of evidence for criminal cases. There is no outright repeal of the statutes listed in Section 9(b). The issue presented is whether Section 9 of House Bill No. 13 causes a lawful repeal of the statutes listed in Section 9(b) which are desig­ nated for repeal by the Court of Criminal Appeals. The meaning of the words designate for repeal in Section 9(a) affects the constitutionality of Section 9 of House Bill No. 13 \mder the separation of powers doctrine of Article II, § 1 of the Texas Constitution The authority, if any, bestowed by House Bill No . 13 upon the Court of Criminal Appeals to repeal the civil statutes listed in Section 9(b), or deem the statutes repealed, initially de­ pends upon the meaning of the words cresignate for repeal. A construing court must apply the specific text of a statute without reference to extrinsic aids and rules of statutory construction if the lan­ guage of a statute is not ambiguous. 79 The tenninology deSignate for repeal seems sufficiently clear so as to be Wlam­ biguous as it appears on its face to mean that the Court of Criminal Appeals is empowered to merely designate which of the statutes listed in Section 9(b) should be considered for later repeal by the leg­ islature. The statutory language in Sec­ tion 9(a) does not contain an express repealer or purport to say the statutes listed in Section 9(b) are repealed upon action by the Court of Criminal Appeals. The language of Section 9(a)(2), how­ ever, includes wording which renders Section 9 ambiguous as it says "a list of statutes repealed Wlder this section."

Analysis of Section 9 of House Bill No. 13 Wlder the principles of statutory construction establishes that the Court of Criminal Appeals is not thereby empow­ ered to repeal any statute. The words designate for repeal are not defmed in

House Bill No . 13, and \meier the rules for construction of civil statutes must be given their ordinary meaning Wlless "con­ nected with and used with reference to a particular trade or subject matter" or "used as a word of art," in which case the words shall have the "meaning given by experts in the particular trade, subject matter, or art."80 Words defmed in dic­ tionaries with meanings so well known so as to be Wlderstood by persons of ordi­ nary intelligence are not considered vague or indefInite. 81 Common dictionary defi­ nitions ofthe term repeal clearly indicate

a repeal is a legislative enactment abro­

gating or armulling a prior

term repeal has a distinct legal meaning

statute. 12 The

as it is similarly defined by an appellate court in Texas. 83 The word repeal is accordingly defined by law requiring application of "the meaning given by experts in the particular trade, subject

matter,

or art. 1184 The word repeal

whether defmed by conunon usage or by legal or technical meaning can only be construed to mean the abrogation or annulling of a statute by a legislative act or action in the form of a statute. Desig­ nate for repeal thus construed means designate for action by the Legislature. Construction of Section 9 of House Bill No. 13 as authorizing designation of a statute for repeal by the Legislature does not give the Court of Criminal Appeals authority to repeal, amend, or limit the application of any statute listed in Section

9(b).

A construction of Section 9 of House Bill No. 13 as empowering the Court of Criminal Appeals to repeal statutes listed therein, or otherwise limit their applica­ bility to criminal law matters, causes Section 9 to be an Wlconstitutional dele­ gation of a legislative function violating Article II, § 1 of the Texas Constitution insofar as the Court. and not the legisla­ ture, makes the decision as to which of the statutes listed in Section 9(b) are repealed. Courts are required to construe

a statute in a manner so as to uphold its constitutionality.8s The Court of Crimi­ nal Appeals carmot be delegated the

power to repeal statutes indirectly when it cannot be given the power directly by the Legislature. 16 The wording of Section 9 does not authorize the Court of Criminal Appeals to limit the application of any statute listed in Section 9(b) to preclude its use in criminal cases or criminal law matters. The language of Section 9, if construed to authorize repeal of any stat­ ute by the Court of Criminal Appeals, requires a repeal of the entire statute. The medical and mental health enact­ ments are not repealed, and continue to be amended, indicating that the Legislature views any designation by the Court of Criminal Appeals as only advisory. A construction of Section 9 as authorizing the Court of Criminal Appeals to suggest which of the listed statutes should be repealed by the Legislature upholds its constitutionality, but does not empower the Court to limit application of any stat­ ute. The provisions of House Bill No. 13, regardless of construction, do not confer lawful authority to repeal statutes on the Court of Criminal Appeals. The practices and holdings of the Court of Criminal Appeals deeming lawfully enacted stat­ utes repealed so as to prevent their lawful application to court proceedings and related matters: (1) exceed the authority granted by Article V, § 31 of the Texas Constitution; (2) exceed the authority granted by House Bill No. 13; and (3)

interfere with the powers of the legislative branch of government violating the sepa­ ration of powers doctrine of Article II, §

I of the Texas Constitution.

The holdings of the Court of Crimi­ nal Appeals that the medical and mental health enactments are deemed repealed as

to criminal cases and criminal law matters also exceed the scope of authority granted by House Bill No. 13 as the Act does not authorize the court to promulgate or affect rules of criminal procedure. The medical and mental health enacbnents contain procedural aspects as they set out

a procedure for obtaining medical records and other evidence, and are therefore special statutes. 87 The medical and men­ tal health enactments, as special statutes

to the extent of prescribing procedures for obtaining evidence, control over the gen­ eral provisions of the Texas Code of Criminal Procedure as to how such evi­

dence may be lawfully

tion of a procedure for obtaining evidence

under the medical and mental health enacbnents constitutes violation of a statute, and any evidence obtained through violation of a statute is inadmis­ sible in criminal proceedings by virtue of Article 38.23 of the Texas Code of Crim­ inal Procedure regardless of its admissi­ bility under the Texas Rules of Criminal Evidence. 89 The Court of Criminal Ap­ peals cannot deem the medical and mental health enactments repealed as to proce­ dure applicable to criminal cases and crirninallaw matters as such action: (1) exceeds the scope of authority conferred by House Bill No. 13 by invading the area of criminal procedure; (2) exceeds the authority granted by Article V, § 31 of the Texas Constitution; and (3) interferes with the powers of the legislative branch of government by affecting procedure in criminal cases, and thereby violates the separation of powers doctrine of Article II, § I of the Texas Constitution. 90

obtained. 88 Viola­

Conclusions

The Supreme Court and Court of Criminal Appeals lack lawful authority under Article V, § 31 of the Texas Con­ stitution to promulgate rules of any kind inconsistent with any lawfully enacted statute. The Legislature may not through delegated rulemaking authority empower either Court to do anything forbidden by the Texas Constitution. The Texas Con­ stitution does not authorize the Legisla­ ture to delegate to either Court the power to repeal or limit application of any law­ fully enacted statute, and any statute which can be construed as delegating such function to either Court is unconsti­ tutional in violation of Article II, § 1 as an unauthorized delegation of a legisla­ tive function. The enabling legislation delegating rulemaking authority to the Supreme Court and the Court of Criminal Appeals does not lawfully empower either

Court to repeal or limit any lawfully enacted statute so as to prevent its appli­ cation to court proceedings or related matters. Consequently, the practices and holdings ofboth Courts deeming lawfully enacted statutes repealed because of rulemaking orders or activities, and there­ fore inapplicable to court proceedings, exceed the lawful authority delegated to each Cowt and are WlCOnstitutional as (1) exceeding the authority granted respec­ tively by Article V, § 25 and Article V, § 31 and (2) infringing 00 the powers of the legislative branch of government violat­ ing the separation of powers doctrine of Article II, § I of the Texas Constitution. The medical and mental health enact­ ments, among other affected statutes, must be given full lawful effect in court proceedings and related matters. The medical and mental health enactments, therefore, control to the extent of conflict ova Rules 509 and 510 of the respective rules of evidence. 91 The medical and mental health enactments also control in the event of conflict over the Texas Rules ofCivil Procedure and the Texas Code of Criminal Procedure to the extent that the statutes are special statutes regarding procedure relating to the subject matter areas covered by their provisions.92 The Supreme Court and Court of Criminal Appeals, if not content with any statutory provisions, may lawfully reconunend changes to the Legislature. 93 Any changes to the provisions of lawfully enacted statutes may only be made by the Legislature. 9oI The Supreme Court and the Court of Criminal Appeals must give full effect to all lawfully enacted stat­ utes. 9S No amount of acquiescence can remedy the violations of the Texas Con­ stitution discussed in this article. 96 Nev­ ertheless, the situation presented may have simple solutions. 97 The Legislature enacts the laws of the State of Texas in the form of statutes. The courts of the State of Texas are constitutionally re­ quired in all circumstances to give full lawful effect to all lawfully enacted stat­ utes.

ENDNOTES

1. Tex. Rev. Civ . Stat. Ann. art. 4495(b), § 5.08 (Vernon SUpp.

1996).

2. Tex. Health and Safety Code Ann. §§ 611.001 through 611.005 (Vernon 1992).

These provisions were fonnerly codified as Tex. Rev . Civ. Stat. Ann. art. 5561h. See Tex. Health and Safety Code Ann., Chapter 611 historical and statutory notes (Vernon 1992). Section 611.004(a)(9) provides that confidential infonnation may be disclosed "in a civil action or in a criminal case or criminal law matter as other­ wise allowed by law or rule." This language appears to sub­ ordinate the statutes in Chapter 611 of the Health and Safety Code to court promulgated rules. See: Tex. Health and Safety Code Ann., § 611.004 revisor's note (Vernon 1992). The tenns "otherwise allowed by law" may condition the op­

eration of the statutes to proce­

dures set forth in Article 4495b, § 5.08. The word "rule" obviously refers to Rules 509 and 510 of the Texas Rules of Civil Evidence and Texas Rules of Criminal Evi­ dence respectively. This article addresses the question of whether the operation of a stat­ ute may lawfully be limited by court promulgated rules.

ble. R.K., 887 S.W.2d at 840;

Richardson

v.

State,

865

S.W.2d 944, 953 n.7 (Tex. Crim. App. 1993).

4. The discussion and analysis of the scope of court rulemaking authority herein applies to any statute which has at any time been listed or designated as repealed (X' added to the List of Repealed Statutes by either the Supreme Court of Texas or the Court of Criminal Appeals of Texas, and has not been law­ fully repealed by the Legisla­ ture. The statutes involved are too nwnerous to analyze for the purpose ofthis article, and may be located through reference to infra notes 24, 29, and 34. The medical and mental health enactments, and court enabling legislation relating to same, are utilized herein for purpose of example as the statutes have procedural and evidentiary as­ pects, and are referred to herein collectively as presently and fonnerly enacted or codified.

5. Walker v. Baker,

121,

196

(1946).

S.W.2d

Tex.

324, 328

145

6. Armadillo Bail Bonds v. State,

802 S.W.2d 237, 240 (Tex.

Crim. App. 1990).

7. Vinson

v.

Burgess,

773

S.W.2d 263, 270 (Tex. 1989).

8. Pub. Utility Com'n of Texas v.

3. R.K. v. Ramirez, 887 S.W.2d

836,

840

n.5

(Tex.

1994);

State v. Comeaux, 818 S.W.2d

46, 52 n.6 (Tex. Crim. App.

724

1991);

Blunt v. State,

S.W.2d 79, 80-81 n.l (Tex. Crim. App. 1987). Both Courts recognize the statutes are otherwise valid and opera­

Cofer, 754 S.W.2d 121, 124

(Tex. 1988); Boykin v. State,

818 S.W.2d 782, 785 (Tex.

Crim. App. 1991); Ex Parte

Hayward, 711 S.W.2d 652, 655-656 (Tex. Crim. App.

1986).

9. Morrow v. Corbin, 122 Tex.

553,

62

S.W.2d

641,

645

(1933); Kelley v. State, 676

S.W.2d 104, 107 (Tex. Crim.

App. 1984); Jackson v. State,

861 S.W.2d 259, 261 (Tex. App. - Dallas 1993, no pet).

10. Friedman v. American Surety

Co. of New York,

137 Tex.

149,

151

S.W.2d 570, 580

(1941).

11. Lee v. City of Houston, 807

S.W.2d 290, 294-295 (Tex.

1991); Jones v. Liberty Mu­ tuailnsurance Company, 745

S.W.2d 901, 902 (Tex. 1988).

12. Tex. Coost. art. V, § 25 interp. commentary (Vernon 1955).

13 . Tex. Const. art. V, § 25 (1891, repealed 1985) ("The Supreme Court shall have power to make and establish rules of

procedure

inconsistent

with the laws of the State for

the government of said court and the other courts of this State to expedite the dispatch of business therein".) (empha­ sis added).

not

14. Act of May 12, 1939, 46th Leg., R.S., ch. 25, 1939 Tex. Gen. Laws 20 I, amended by Act of March 5, 1941, 47th Leg., R.S., ch. 53, 1941 Tex. Gen. Laws 66 (codified at Tex. Rev. Civ. Stat. Ann. art. 173la). The amendment re­ lated to interim rulemaking authority of the Supreme Court for rules prior to the effective date of the act, September I, 1941, and appears as enacted at Tex. Rev. Civ. Stat. Ann. art. 1731 a, historical note (Vernon 1962).

15. Bar Ass'n of Dallas v. Hexter

175

Tille

& Abstract

Co.,

 

phasis added)

 

in 1987 as Article 1811f, §4.

S.W.2d 108, 113 (Tex. Civ. App. - Fort Worth 1943), ajJ'd, 142 Tex. 506,179 S.W.2d 946

(b) The Supreme Court shall promul­

Analysis of Section 4 may, nevertheless, be relevant as to

(1944).

the effect of articles of the code

16.

Tex. Rev. Civ. Stat. Ann. art.

Moritz v. Byerly, 185 S.W.2d

The Supreme Court entered the

gate rules of civil procedure for all courts not inconsistent with the laws of the state as may be necessary for the efficient

and unifonn administration of justice

in

(c) The Legislature may delegate to

not repealed by the Legislature which conflict with the provi­

1731a, § 2 (Vernon 1962);

589,590-591 (Tex. Civ. App. - Austin 1945, writ refd).

the various courts. (emphasis added)

the Supreme Court or Court of Criminal

sions of the Texas Rules of Appellate Procedure. The Court's List of Repealed Stat­ utes in this regard appear in Vernon's Texas Rules Ann.,

17.

Order Adopting Rules as to what is currently the Texas Rules of Civil Procedure on October 29, 1940, effective

Appeals the power to promulgate such other rules as may be prescribed by law or this Constitution, subject to such limi­ tations and procedures as may be pro­ vided by law.

1996 Special Pamphlet, Evi­ dence and Appellate Proce­ dure, at 572-573. See infra note 86 for partial analysis of Section 4.

September 1, 1941. Vernon's Ann. Rules Civ. Proc., Vol. I, at p. XLIII (Vernon 1979). See also Rules of Practice and

20.

Bedner v. Federal Underwrit­ ers Exchange, 133 S.W.2d 214, 216 (Tex. Civ. App. -

25. Act of May 17, 1985, 69th Leg., RS., ch. 480, 1985 Tex. Gen. Laws 1720.

Procedure in Civil Actions, 3 Tex. B.J. 517 (1940). The Su­ preme Court entered its order

Eastland 1939, writ dism'd judgm't. cor.).

26. Tex. Gov't Code Ann § 22.004 historical note (Vernon 1988).

adopting the Texas Rules of

21.

Act of May 26, 1985, 69th

Evidence on November 23, 1982, effective September 1,

Leg., RS., ch. 685, 1985 Tex. Gen. Laws 2472 (amended

27. Tex. Gov't Code Ann. § 22.003 historical note (Vernon

Vernon's Texas Rules

Ann., 1996 Special Pamphlet, Evidence and Appellate Pro­ cedure, at 2. The Texas Rules

1983.

1987) (current version at Tex. Rev. Civ. Stat. Ann. art. 181lf (Vernon Supp. 1996».

1988).

28. Garrell v. Mercantile Nat. Bank, 140 Tex. 394, 168

of Evidence became the Texas

22.

Tex.

Gov't

Code

Ann.

§

S.W.2d 636,638 (1943) ("This

Rules of Civil Evidence by Or­

22.1 08 historical note (Vernon

was broad enough to evidence

der of the Supreme Court en­ tered November 10, 1986, ef­

1988).

an intention that all procedural statutes, including those passed

fective January 1, 1988. Id. at

23 .

Tex . Gov't Code Ann.

§

at the same session of the Leg­

4.

22.1 09 historical note (Vernon

islature, should become inoper­

 

1988).

ative on and after September 1,

18.

Tex. S.1. Res. 14,

§ 8 and § 9,

 

1941.").

69th Leg., R.S., 1985 Tex. Gen. Laws 3355 (adopted on November 5, 1985).

24.

Tex. Rev. Civ. Stat. Ann. art. 1811f historical and statutory notes (Vernon Supp. 1996). Sections 4 and 9 of House Bill

29. The List of Repealed Statutes includes those listed on the initial list accompanying the

19.

Tex. Const. art. viding:

V. §

3/ pro­

No. 13 concern repeal of stat­ utes. Section 4 provides for

Order Adopting Rules entered October 29, 1940 and subse­

(a)The Supreme Court is responsible for the efficient administration of the judicial branch and shall promulgate rules of administration not inconsistent with the laws ofthe state as may be necessary for the efficient and unifonn administra­ tion of justice in the various courts. (em­

repeal of designated articles of the Code of Criminal Proce­ dure relating to appellate pro­ cedure in criminal cases. Sec­ tion 4 is not analyzed in depth herein as it does not relate to the medical and mental health enactments, and was repealed

quently listed by various orders adopting amendments to the rules of procedure and orders in connection with adopting or amending the rules of evidence. The orders and enumerated statutes listed as repealed as to civil actions through

 

rulemaking as to rules of pro­ cedure appear in Vernon's Ann.

 

1.

See infra note 71 .

not inconsistent with the law.

Rules Civ. Proc., Vol. 1, pp .

34.

The Order Adopting Texas

37.

Cf R.K, 887 S.W.2d at 840

XLill-LXXXllI (Vernon 1979)

Rules of Criminal Evidence

n.5

and

Crocker v.

Synpol,

and in the 1996 pocket part supplement thereto at XIX­

dated December 18, 1985, ef­ fective September 1, 1986,

Inc., 732 S.W.2d 429, 435 (Tex. App. - Beaumont 1987,

XXXD. Various orders regard­ ing the rules ofevidence appear

appears m Vernon's Texas Rules Ann, 1996 Special Pam­

no writ) ("An uncertainty arises as to whether Sec. 5.08 has

 

phlet, Evidence and Appellate

been repealed a

only limited to

 

in Vernon's Texas Rules Ann., 1996 Special Pamphlet, Evi­

dence and Appellate Proce­

du re, at 2-10, and the List of Repealed Statutes accompany­ ing the rules appears at 181 .

Procedure, at 184, and the ac­ companying List of Repealed Statutes appears at 542-543. The statutes listed were not repealed by the Legislature at

non-judicial disclosure circwn­ stances. "). Such uncertainty causes confusion and wastes judicial resources.

Not every order adds to the List of Repealed Statutes.

that time, and several, such as Tex. Rev. Civ. Stat. Ann. art.

38.

Few v. Charter Oak Fire In­ surance Company, 463

 

4495b, § 5.08 (Vernon Supp.

S.W.2d 424, 425 (Tex. 1971).

30.

See,

e.g.,

Tex. Gov't

Code

1996), amended as recently as

See also Clear Lake City Wa­

Utilities Co., 549 S.W.2d 385,

Ann. § 22 .004 revisor's note (Vernon 1988).

 

1995, remain on the books as valid statutes.

ter Authority v. Clear Lake

 

389

(Tex. 1977); Kirkpatrick

3l.

Tex . R Civ. P. 819. Rule 819

35 .

See, e.g., R.K, 887 S.W.2d at

 

v. Hurst, 484 S.W.2d 587, 589

is tmconstitutional to the extent providing rules prevail over

840 n.5.

(Tex. 1972); Government Ser­ vices Ins. Underwriters v.

statutes for the reasons dis­ cussed herein as it exceeds the limited grant of authority to

36.

Delegation of legislative power has been authorized in limited instances where it would be

Jones, 368 S.W.2d 560, 563 (Tex. 1963).

promulgate rules not inconsis­

impossible or impractical for

39.

City of Wichita Falls v. Wil­

tent with the laws of the State tmder Tex. Const. arts. V, § 25 and V, § 31 and violates Tex. Const. art. II, § 1.

the legislature to perform the functions delegated. The Leg­ islature in such instances must declare a policy and fix a pri­ mary standard governing the

liams, 119 Tex. 163, 26 S.W.2d 910, 914 (1930); Cox v. Robison, 105 Tex. 426, 150 S.W. 1149,1151 (1912).

32.

See, e.g. , Moore v. Johnson,

exercise of the delegated power

40 .

Hubbard v. Hamilton County,

785 S.W.2d 176, 179 (Tex.

to provide guidance in the exer­

113

Tex. 547,261 S.W.990,

App. - Waco 1990, no writ) ;

cise of the delegated power.

991

(1924); Lyle v. State, 80

Stubbs

v.

Thomason,

244

Railroad Com'n of Texas v.

Tex. Crim. 606, 193 S.W. 680,

S.W.2d 844, 845 (Tex. Civ.

 

Lone Star Gas, 844 S.W.2d

682 (1917).

See also Trav­

33.

App.

dism'd).

-

Dallas

1951,

writ

Tex. Gov't Code Ann. § 22.004(c) (Vernon 1988). This section to the extent pro­ viding court promulgated rules repeal statutes where conflict­ ing is, as discussed herein, tmconstitutional in violation of the express provisions of Tex. Const. art. V, § 3 1 and the sep­ aration of powers doctrine con­ tained in Tex. Const. art. II, §

679, 689-690 (Tex. 1992); Ex

S.W.2d

Parte Gran vieI, 561

503, 514-515 (Tex. Crim. App. 1978). No standards have been established by the Legislature for the exercise of delegated rulemaking authority to the courts except for that in Tex. Gov't Code Ann. § 22.003(b) (Vernon 1988) di­ recting that rules of practice

and procedure for the govern­ ment of the Supreme Court and all other courts of the state be

eler's Ins. Co . v. Marshall,

124 Tex. 45, 76 S.W.2d 1007, 1024 (1934).

4l.

Vinson, 773 S.W.2d at 265;

v.

40

S.W.2d 13,15 (1931); Cooky.

State, 902 S.W.2d 471, 478 (Tex. Crim. App . 1995);

Oakley v. State, 830 S.W.2d

Crim. App.

Collingsworth

Allred,

120

County

473,

Tex.

107,

110 (Tex.

1992).

42.

Collingsworth

County,

40

Crim. App. 1988); Halstead,

 

Section I of the Rules of Prac­

S.W.2d at 15.

 

182 S.W.2d at 482.

tice Act. Tex. Rev. Civ. Stat. Ann. art. 1731a. § I (Vernon

43

Carpenter v. Sheppard, 135

50.

Thompson v. United Gas Cor­

1962).

Tex.

413,

145 S.W.2d 562,

poration. 190 S.W.2d 504.

 

567

(1940).

 

508

(Tex. Civ. App. - Austin

56 .

Ex Parte Holmes. 754 S.W.2d

 

1945, writ refd) ("Simply

676.685 n.6 (Tex. Crim. App.

44.

Ex Parte Hayckn, 152 Tex.

 

stated, a repew is the 'abroga­

1988); Garrett v. Slate, 279

Crim. 517, 215 S.W.2d 620,

tion of annulling of a previ­

S.W.2d at 368.

 

622

(1948).

 

ously existing law by a subse­

 

45.

Ex Parte Spring, 586 S.W.2d

 

quent statute, which either de­ clares that the fonner law sha11

57 .

Jefferson County v. Board of County and District Road In­

482.

485-486

(Tex.

Crim.

be revoked and abrogated,' or

debtedness. 143 Tex. 99, 182

App. 1978); Armes v. State,

which contains provisions so

S.W.2d 908, 915 (1944).

573 S.W.2d 7, 8 (Tex. Crim. App. [Panel Op.] 1978).

contrary to or irreconcilable with those of the earlier law that only one of the two can

58.

City of Port Arthur v. Jeffer­ son County Fresh Water Sup­

553, 556 (Tex. Civ. App. ­

46.

Arnold v. Leonard, 114 Tex.

535, 273 S.W. 799, 802

stand in force. ").

ply District No.1. 596 S.W.2d

(1925) (tilt is a rule of

51.

Various definitions of repew

Beaumont 1980, writ refd

construction of Constitutions

and amendment appear at infra

n.r.e.).

that ordinarily, where the cir­

note 82.

 

cwnstances are specified under

 

59.

Tex. Const. art. II, § 1 ("[N]o

which any right is to be acquired, there is an implied

52 . Texas Nat. Guard Armory Board v. McCraw, 132 Tex.

person, or collection of per­ sons, being of one of these de­

prohibition against the legisla­

 

613.

126

S.W.2d

627,

635

partments, shwl exercise any

tive power to either add to or

(1939).

 

power properly attached to ei­

withdraw from the circum­

 

ther of the others, except in the

stances specified. "). See also

53. Brown v. Humble Oil & Refin­

 

instances

herein

expressly

Walker, 196 S.W.2d at 328;

 

ing Co., 126 Tex. 296, 83

permitted'~ (emphasis added).

White v. State. 440 S.W.2d

S.W.2d 935. 941 (1935).

 

660,

665

(Tex. Crim.

App.

 

60.

Armadillo Bail Bonds,

802

1969).

54. Acker v. Texas Water Com'n,

S.W.2d at 239; Ex Parte Giles,

 

790

S.W.2d 299, 301

(Tex.

502 S.W.2d 774, 780 (Tex.

1990); Standard v.

Sadler,

Crim. App. 1973); State ex rei

47 .

City

of

Fort

Worth

v.

383

S.W.2d 391, 395 (Tex.

Smith

v.

Blackwell.

500

Howerton, 149 Tex. 614,236

 

1964); Garrett v. State. 161

S.W.2d 97,

lOl (Tex. Crim.

See also In re

S.W.2d 615, 618 (1951);

Tex. Crim. 556, 279 S.W.2d

App . 1973).

Dendy v.

Wilson,

142 Tex.

366, 368 (1955).

Thoma, 873 S.W.2d 477, 507

460, 179 S.W.2d 269, 273

 

(Tex. Rev. Trib. 1994);

(1944); Ex Parte Halstead,

55. Garrett v. State. 279 S.W.2d at

 

Meshell v. State, 739 S.W.2d

147

Tex.

Crim.

453,

182

368; City of Beaumont Inde­

246, 252 (Tex. Crim. App.

S.W.2d 479, 482 (1944).

 

pendent

School

District

v.

Broadus, 182 S.W.2d406, 410

1987) (holding the Speedy Trial Act unconstitutional)

48.

State v.

Hatcher,

115

Tex.

 

(Tex. Civ. App. - Amarillo

("Although one department has

332, 281 S.W. 192, 195-196

1944, writ refd). Examples of

occasionwly exercised a power

(1926).

 

generw repewers may be found at Tex. Rev. Civ. Stat. Ann.,

that would otherwise seem to fit within the power of another

49.

Dickson

v.

Strickland,

114

Final Title § 2 (Vernon 1967)

department, our courts have

Tex.

176,

265

S.W.

1012,

 

(repealing all statutes existing

only approved those actions

1021

(1924);

Jefferson

v.

prior to enactment of the Texas

when authorized by an express

State, 751 S.W.2d 502 (Tex.

 

Revised Civil Statutes), and in

provision of the Con­

stitution. H); Hayward, 711 S.W.2d at 655.

61. Lee, 807 S .W.2d at 294-295;

Williams v. State, 707 S.W.2d

40, 44-45 (Tex. Crim. App.

68 . Chemical Bank & Trust Com­ pany v. Falkner, 369 S.W.2d

427,432 (Tex. 1963); Watts v. Mann, 187 S.W.2d 917, 924 (Tex. Civ. App. - Austin 1945, writ refd).

(1933). The Legislature may not empower cowts to issue advisory opinions in the ab­ sence of an express constitu­ tional provision authorizing

same. Slate v. Margolis, 439

 

1986).

S.W.2d 695, 698-699 (Tex.

 

69.

See Tex. Rev. Civ. Stat. Ann.

1962).

 

Civ. App. -Austin 1969, writ

62

.

Lasater v. Lopez,

110 Tex.

179, 217 S.W. 373, 376-377 (1919) ("COurts have nothing

art. 1731a, §§ I and 3 (Vernon

refd n.r.e.). Tex. Gov't Code Ann. § 22.004(c) (Vernon 1988) is also unconstitutional

 

to do with the making of stat­

70.

Hallum v. Texas Liquor Con­

for this reason. Section 5 of

utes, or the repeal of statutes. They violate their true powers and endanger their own author­ ity whenever they lDldertake the

trol Board, 166 S.W.2d 175, 176-177 (Tex. Civ. App. - Dal­ las 1942, writ refd). See cases cited supra notes 54, 56, and

the Rules of Practice Act and Tex. Gov't Code Ann. §§ 311.032(c) and 312.013(a) (Vernon 1988) contain sever­

legislative role. Legislation is for legislatures, not courts.").

58.

ability or savings provisions which prevent entire acts from

See

also

Hayward,

711

71.

No provision in the Texas Con­

 

being voided because of partial

S.W.2d at 656.

stitution authorizes the Legisla­ ture to empower the Supreme

unconstitutionality.

63.

Halstead, 182 S.W.2d at 482.

Court to issue advisory opin­

72.

Central Power & Light v. Pub.

 

ions . An advisory opinion de­

Utility

Com'n,

649 S.W.2d

64

.

Daniel v. Tyrrell & Garth Inv.

 

cides an abstract question of

287,289 (Tex. 1983); WailS,

 

Co., 127 Tex. 213,93 S.W.2d

ern Bell Telephone Company

law without binding any par­

187

S .W .2d at 924; Bryant v.

372, 375 (1936); Southwest­

ties. Texas Association of BUSiness v. Texas Air Control

Slate, 457 S.W.2d 72, 78 (Tex. Civ. App. - Eastland 1970, writ

v. State,

523 S.W.2d 67, 69

Board, 852 S.W.2d 440, 444

refd n.r.e.).

(Tex.

Civ.

App.

-- Austin

(Tex. 1993). Courts may not

 

1975), rev'd on other grounds,

 

issue opuuons on abstract

73 .

Garrell

v.

Mercantile

Nat.

526

S.W.2d 526 (Tex. 1975).

questions of law in the absence

Bank, 168 S.W.2d at 638. See

Alternatively stated, the Legis­

 

of an actual case or

cases cited supra note 56.

lature carmot constitutionally impose functions on courts that

controversy. Section 3 of the Rules of Practice Act autho­

74 . Hallum, 166 S.W.2d at 176­

are legislative in nature. In re

rizes the court to effectively

 

177.

See the following as to

Johnson, 554 S.W.2d 775, 780

issue an advisory opinion as to

practical effect of special stat­

(Tex. Civ. App. -- Corpus

the effect of Section I on stat­

utes : Forwood v. City ofTay­

Christi 1977), writ refd n.r.e.,

utes enacted on or before the

lor, 147 Tex. 161,214 S.W.2d

569

S. W.2d 882 (Tex. 1978).

effective date of the act in the

282, 285-286 (1948); Sam

 

absence of a case or contro­

Bassell Lumber Co. v. City of

65. Key

Western Life Ins . Co . v.

versy. See Tex. Rev. Civ. Stat.

Houston, 145 Tex. 492, 198

 

State Board ofInsurance, 163

 

Ann. art. 1731a, § 3 (Vernon

S.W.2d 879, 881 (1947);

Tex. ll, 350 S.W.2d 839, 847

1962). Advisory opinions vio­

Cantu v. State, 842 S.W.2d

(1961).

late the separation of powers

667,

685

n.l3

(Tex.

Crim.

 

doctrine as the function of issu­

App. 1992), cert. denied 125

66. Carpenter, 145 SW.2d at 567.

 

ance of advisory opinions be­ longs to the executive branch

L.Ed.2d 73 (1993); Garza v. State, 687 S.W.2d 325, 330

67. See

Eichelberger

v.

of government. Fireman's

Ins.

(Tex. Crim. App. 1985). See

 

Eichelberger,

582 S.W.2d

 

Co. of Newark v. Burch, 442

 

also Tex. Gov't Code Ann. §§

395,398-400 (Tex. 1979) (dis­

S.W.2d 331,333 (Tex. 1969);

311.025(a) and 311.026

cussing implied and inherent

Morrow v. Corbin, 122 Tex.

(Vernon 1988).

powers of courts).

553,62 S.W.2d 641,644-647

75. Polaris Investment Manage­ ment Corp. v. Abascal, 892

S.W.2d 860, 862 (Tex. 1995);

Public Utility Com'n v. Cofer,

745 S.W.2d 121, 124 (Tex.

Board of Insurance

Com'rs v. Guardian Life Ins.

Co., 142 Tex. 630, 180 S.W.2d 906, 909 (1944); Hay­ ward, 711 S.W.2d at 655-656.

1988);

76. See supra note 21 for the com­ plete citation to House Bill No.

13.

Gov't Code Ann. § 312.001 (Vernon 1988).

81. Floydv. Siate, 575 S.W.2d 21,

23 (Tex. Crim. App . [Panel

Op.] 1978).

82. The term repeal is defmed in

Webster's

Ninth

Collegiate

LRctiona~,~erriarn-Webster,

Inc., Copyright 1991, as fol­ lows: "1. to rescind or annul by authoritative act; esp .: to revoke or abrogate by legisla­ tive enacbnent." See also

tive act that abrogates an ear­

lier act."

The word repeal is

defmed in The Random House LRcliona~ofthe English lan­

guage, Random House, Copy­ right 1967, as follows : "1. to revoke (l" withdraw formally or

officially:

to repeal a grant.

2. to revoke or annul (a law,

tax, duty, etc.) by express leg­ islative enactment." (empha­

sis added).

83. Thompson, 190 S.W.2d at 508.

77.

Spring, 586 S.W.2d at 485­

Tex. Rev. Civ. Stat. Ann. art.

Black's Law LRctiona~, Sixth

84.

A written opinion of a court of

78.

486; Armes, 573 S.W.2d at 8.

1811f, § 9 (Vernon Supp.

Edition, West Publishing, Copyright 1990, which defmes the term repeal as follows :

record is included in the defini­ tion of a law in Tex. Penal Code Ann. § 1.07(aX30) (Vernon 1994). See Tex. Gov't

1996).

See supra note 21.

Repeal. The abrogation or an­

Golconda LeadMines v. Neill,

Code Ann § 312.002 (Vernon

The Order of the Court of Criminal Appeals of December

nulling of a previously existing law by the enacbnent of

1988).

18, 1985 filed with the Secre­ tary of State included all stat­

subsequent statute which de­ clares that the fonner law shall

85.

Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [panel

utes listed under Section 9(b)

be revoked and abrogated

Op.] 1977); Stale v. Gambling

of House Bill No. 13. See su­ pra note 34. Section 9 does not state that all statutes listed in subsection (b) are repealed upon promulgation of a com­ prehensive body of rules of evidence in the trial of criminal

(which is called "express" re­ peal), or which contains provi­ sions so contrary to or irreconcilable with those Of the earlier law that only one of the two statutes can stand in force (called "implied" repeal). To

Device, 859 S.W.2d 519, 526 (Tex. App. - Houston [1st Dist.] 1993, pet. refd); Tex. Gov't Code Ann. § 311.021(1) (Vernon 1988).

cases. Section 4 of House Bill

revoke, abolish, annul, to re­

86.

Key Western Life Ins. Co., 350

No. 13 provides for the repeal of certain articles of the Code

scind or abrogate by authority.

S.W.2d at 847. Section 4 of House Bill No. 13, like Section

of Criminal Procedure. See

82

Idaho 96, 350 P.2d 221,

9, lists articles of the Code of

supra note 24 and infra note

223.

See also Abrogation:

Criminal Procedure from which

86 regarding Section 4.

express repeal. Amendment

the Court of Criminal Appeals

 

distinguished

Repeal of a law

may select to list as repealed

79.

Boykin, 818 S.W.2d at 785;

means its complete abrogation

 

with the Secretary of State at

City of Dallas v. Cornerstone

by the enacbnent of a subse­

the time of filing the rules of

Bank, N.A., 879 S.W.2d 264, 270 (Tex. App. - Dallas 1994, n.w.h.).

quent statute, whereas the amendment of a statute means an alteration in the law already

post-trial and appellate proce­ dure. Section 4, Wllike Section 9, states that the repeal of the

80.

Tex. Gov't Code Ann. §

existing, leaving some part of the original still standing.

articles so listed by the Court is effective OIl the effective date

312.002 (Vernon 1988). Chapter 312 of the Govern­ ment Code applies to construc­ tion of all civil statutes by vir­ tue of the provisions of Tex.

The word repealer, a deriva­ tive of the word repeal, is like­ wise defmed therein as "one that repeals; specific: a legisla­

of the rules . The Court is given the "option" as to which articles are repealed. The 0p­ tion amounts to an indirect at­ tempt to delegate a legislative

 

function as the Court, and not

Tex. Rev. Civ. Stat. Ann. art.

"[I]n any criminal prose­

The language of 5.08 (g) (10)

(g) (Vernon Supp. 1996».

 

Const. art. V, § 31.

The

the Legislature, makes the fmal decision as to which articles are repealed under this scheme.

88. The procedure for obtaining records set forth in Tex. Rev.

 

deemed repeal of Article 4495b, § 5.08 by either Court is unconstitutional in violation

Section 4, therefore, IS unconstitutional in violation of

Civ. Stat. Ann. § 5.08 (g) (10) (Vernon Supp. 1996) consti­

of Tex. Const. art. II, § 1.

 

Tex. Const. art. n, § 1 as an

tutes a special statute control­

92.

c.E. Duke's Wrecker Service,

unauthorized delegation of a

ling over the provisions of the

Inc . v. Oakley,

526 S .W .2d

legislative function, and cannot

Texas Code of Criminal Proce­

228, 232 (Tex. Civ. App. -

refd n.r.e.). See cases cited

87.

lawfully empower the Court to repeal any statute.

4495b, § 5.08 (g) (10) (Vernon

dure, and could impact service and execution of search war­ rants and grand jury subpoe­ nas, among other things.

Houston [1st Dist.] 1975, writ

supra note 74 as to effect of special statutes.

Supp. 1996) creates an excep­

89. Tex. Code Crim. Proc. Ann.

93

.

See , e.g. , Red River Nat. Bank

tion to the privileges or confi­

art. 38.23 (Vernon Supp.

 

v.

Ferguson,

109 Tex. 287,

dentiality otherwise allowed as to criminal court proceedings

1996).

See Erdman v. State,

861 S.W.2d 890, 893 (Tex.

90. The medical and mental health

206

S.W. 923,927 (1918).

and prescribes a procedure for

Crim. App. 1993); Polk v.

94.

Board of Ins.

Com'rs. ,

180

obtaining medical records as follows:

cution where the patient

State, 738 S.W.2d 274, 276 (Tex. Crim. App. 1987).

enactments cannot be deemed

S.W.2d at 909; Hayward, 711 S.W .2d at 656; Ex Parte Young, 138 Tex. Crim. 418, 136 S.W.2d 863, 864 (1941).

is a victim. witness, or

repealed as to matters of crimi­

95

.

Public Utility Com'n of Texas,

defendant. Records are

nal procedure in any event and

 

754 S.W.2d at 124; Boykin,

not discoverable until

remain valid statutes under this

818

S.W.2d at 785; Hayward,

the court in which the

scenario for consideration of

711

S.W.2d at 655-656.

prosecution is pending makes an m camera

such matters as reasonable ex­ pectation of privacy among

96.

Kimbrough v. Barnett, 93 Tex.

detennination as to the

others.

Cf

Comeaux,

818

301,55 S.W. 120, 123 (1900);

relevancy of the records

S.W.2d at 51-53; and Thurman

 

Ex Parte Heyman,

45 Tex.

or communications or

v.

State , 861 S.W.2d 96,

99­

Crim. 532, 78 S.W. 349, 354­

any portion thereof.

100 (Tex. App. - Houston [lst

91. Tex. R. Crim. Evid . lOl(c);

 

355

(1904).

Such determination shall

Dist.] 1993, no pet.) (holding,

97.

lmmediate solutions to the situ­

statues as repealed; (2) cessa­

not constitute a detenni­ nation as to the admissibility of such records or communica­ tions or any portion thereof."

is the same as appeared at § 5.08 (g) (8) before amendment of the statute, effective Sep­ tember 1, 1995. Act of May 28, 1995, 74th Leg., R.S., ch. 856, § 4, 1995 Tex. Tex. Gen. Laws 4293 (codified as an amendment to Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.08

among other things, that the appellant did not have a rea­ sonable expectation of privacy because of the deemed repeal of the medical and mental health enactments).

Few, 463 S.W.2d at 425. Tex. R. Crim. Evid. 509 purports to abolish the physician-patient privilege in criminal cases. This rule conflicts with the pro­ visions of Tex. Rev. Civ. Stat. Ann. art. 4495b, §§ 5.08 (a)­ (f) (Vernon Supp. 1996) and is null and void by virtue of Tex.

ation described herein may be found by the Supreme Court and the Court of Criminal Ap­ peals through exercise of their lawful rulemaking power to accomplish the following: (1) rescission of all orders listing or designating lawfully enacted

tion of the practice of listing lawfully enacted statutes as repealed in COIUlection with promulgation or amendment of rules; (3) amendment of the rules of procedure and evidence to adopt or conform with the provisions of conflicting law-

fully enacted statutes; and (4) amendment of the rules of evi­ dence and procedure to the ex­ tent necessary to clearly require resolution of conflict between a lawfully enacted statute and a rule in favor of the statute to insure that all valid statutes are given full lawful effect by the courts. Legislative solutions to the situation described herein may include: ( I) an amend­ ment of Section 22.004(c) of the Government Code to con­ form with the requirements of Article V, § 31 of the Texas Constitution and eliminate con­ flict with Section 22.003(b) of the Government Code; and (2) a requirement that court-pro­ mulgated rules be expressly approved by the Legislature as an affumative check against the possibility of conflict with lawfully enacted statutes.

Reprinted with Permission of the Voice for the Defense and the Texas Criminal Defense Lawyer's Association

Biographical of Don Rogers

Don Rogers is an attorney with the law firm of Richard Haynes & Associ­ ates, P.e. in Houston. He attended the University of Houston, where he re­ ceived his B.B.A. (1970), J.D. (1972), and L.LM. (1993) degrees. He is board certified in Criminal Law and Civil Appel/ate Law by the Texas Board of Legal SpeCialization. The Author wishes to specially thank Richard "Racehorse" Haynes ofHous­ ton for his support and encouragement in the preparation of this article. ~

Nancy J. Bailey Appointed

Houston Mayor Bob Lanier recently apPointed Nancy J. Bailey as Judge of Municipal Court No. 10. The appointment was confirmed at the Houston City Council meeting on Wednesday, Septem­ ber 4, 1996. Judge Bailey earned her Bachelor of Arts Degree from Rice University and her Doctor of Jurispru­ dence degree from the University of Houston Law Center. Before assuming her new position, Judge Bailey served as Senior Executive Assistant to the Direc­ tor of Public Works and Engineering and, prIor to that, she served as Senior Council

Aide to former City of Houston member Jim Greenwood.

Council­

to former City of Houston member Jim Greenwood. Council­ ~.)::: ;,.~ ~ .~1-. ,:~ '~"j. SEND
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'T"f)'"DOCKET CALL

OCTOBE~OVEMBER1~

HCCLA GRIEVANCE COMMITTEE RESOLUTION

by DAVID MITCHAM

On November 16, 1995 in Judge Keagan's cowtroom, there was a very oilightening Continuing Legal Education seminar conducted by the State Bar re­ garding the grievance process. Several attorneys for a cowtroom full of criminal defense lawyers in attendance. One of the issues that emerged during the seminar was the relationship between the Grievance Prone Practice Areas (please see chart below) and the occupational configuration of the griev­ ance panels which make up the Grievance Conunittee. There are 180 lawyers in this district which constitutes the Grievance Committee, along with a number of non­ attorney citizens who volunteer their time to sit in judgment of lawyers.

who volunteer their time to sit in judgment of lawyers. Grievance Prone Practice Areas (1993-1994 Discipline

Grievance Prone Practice Areas

(1993-1994

Discipline

Year: 5/1/93-4/30/94)

This chart represents the per­ centage of grievances filed with respect to particular ar­ eas of law practice. For ex­ ample, 28% of all grievances upgraded to complaint status involved criminal law representation. As this chart indicates, if an attorney han­ dled no criminal, personal injwy, or family law cases, the attorney's chances of having a .

grievance filed were no greater than 8% during this period.

Out of the 180 lawyers, it came to light that a grand total of 14 had experi­ ence in the filed of criminal law according to one of the Conunittee's administrative lawyers who spoke at the seminar. There­ fore, criminal lawyers constitute approxi­ mately 8% of the Grievance Conunittee whose case load involves complaints against criminal lawyers at 28%. The attitude displayed by the Bar's personnel varied in regard to these disqui­ eting statistics. The administrative law­ yer appeared resigned to the circumstance and gave the opinion that the Conunittee would never be in a situation where there could be a criminal lawyers on each of the 6 panels. The Chief Investigator offered the opinion that criminal lawyers on the panels were unnecessary and that all that was needed were 6 people with "good common sense". The Chief Attorney for the Conunittee, Mr. Rick Perry, stated in response to a question regarding the Committee's make up and the perception that criminal defense lawyers were under represented, that the Committee was indeed interested in getting more solo practitioners and small finn practitioners who had experience in criminal law to serve on the Committee but to date very few had applied. Presently, it appears from the information gathered at the seminar that the Conunittee is primarily derived from civil practitioners from large firms who can afford to spend the time necessary to sit in judgment of their peers who it ap­ pears from the information gathered at the seminar come from areas civil practi­ tioners do not practice in. And of course, there are those citizen volunteers willing to devote their spare time policing our profession. It was not brought to light what

percentage of the Conunittee was derived from family law practitioners or from the plaintiffs personal injury bar but the impression was that it was consistent with the representation afforded to the criminal bar.

So the upshot of the seminar's discussion seemed to be that the areas of practice that are receiving the brunt of the Grievance Committee's attention are being judged by attorneys who do not practice in these areas and citizen volun­ teers who have never experienced the problems associated with the practice of law.

In order to attempt to rectify this apparent imbalance in the Committee's occupational configuration and to provide for meaningful peer review, it should be resolved that the Harris County Criminal Lawyers Association form a Committee to recruit attorneys to participate on the State Bar's Grievance Conunittee and submit their names to the appropriate Bar officials and monitor our representation therein. Further, this HCCLA Grievance Committee should establish liaisons with the family law bar and the plaintiffs persooal injury bar to likewise organize a response to this apparent imbalance with the Bar's grievance organization.

imbalance with the Bar's grievance organization. D O C K E T C A l l
ALRAPPEALS by Elizabeth Rutkowski ALR license suspensions cannot be ignored by attorneys who represent clients

ALRAPPEALS

by Elizabeth Rutkowski

ALR license suspensions cannot be ignored by attorneys who represent clients charged with OWl, intoxication assault if a person was operating a motor vehicle at the time of the offense; and/or criminally negligent homicide if a person was operating a motor vehicle at the time of the offense. Whether the person is charged with refusal or failure of a breath test the